Requiring Detailed “Active Efforts” Findings in ICWA Termination Cases: Commentary on In the Interest of J.C., 2025 ND 217 (N.D. 2025)

Requiring Detailed “Active Efforts” Findings in ICWA Termination Cases: Commentary on In the Interest of J.C., 2025 ND 217 (N.D. 2025)

I. Introduction

The North Dakota Supreme Court’s decision in In the Interest of J.C. and S.C.Y., 2025 ND 217, adds an important procedural and substantive clarification to the State’s implementation of the Indian Child Welfare Act (ICWA), as codified in N.D.C.C. ch. 27‑19.1. Although the juvenile court terminated the parental rights of P.D. (the mother of two enrolled members of the Mandan Hidatsa Arikara Nation), the Supreme Court did not simply affirm or reverse. Instead, it retained jurisdiction and remanded for specific, detailed findings on whether “active efforts” were made to prevent the breakup of the Indian family, as required by N.D.C.C. § 27‑19.1‑01(2) and 25 U.S.C. § 1912(d).

The case arises from repeated child welfare involvement with two young children, J.C. (born 2016) and S.C.Y. (born 2017), both Indian children under ICWA. Over several years, the Ward County Human Service Zone intervened multiple times due to concerns about parental substance use, domestic violence, instability, and failures to meet the children’s needs. The children were most recently removed on March 20, 2025. Petitions to terminate P.D.’s parental rights were filed on June 4, 2025, and trial was held September 5, 2025. The father, A.Y., is deceased.

On appeal, P.D. challenged both the state-law grounds for termination and the ICWA compliance of the juvenile court’s order, focusing especially on the failure to make an explicit “active efforts” finding. The Supreme Court affirmed the core state-law determinations (that the children are in need of protection, that the causes of that status are likely to continue, and that the children have suffered or will suffer serious harm), and noted that the juvenile court also made the required “serious damage” finding beyond a reasonable doubt under ICWA. However, the Court concluded that the juvenile court did not make the statutorily required finding that active efforts were made to provide remedial and rehabilitative services designed to prevent the breakup of the Indian family and that those efforts proved unsuccessful.

This opinion therefore stands for a clear procedural and substantive rule: in termination of parental rights proceedings involving Indian children, North Dakota juvenile courts must enter explicit, detailed findings on ICWA “active efforts” focused on preventing family breakup, and may not rely on generic references, conclusory statements, or a witness’s characterization of efforts as “active.” When such findings are missing, the proper remedy may be a limited remand with retained appellate jurisdiction to cure the deficiency.

II. Summary of the Opinion

A. Factual and Procedural Background

The two subject children, J.C. (2016) and S.C.Y. (2017), are enrolled members of the Mandan Hidatsa Arikara Nation, making ICWA and North Dakota’s implementing statute applicable. The Ward County Human Service Zone first became involved in 2019, and the children had been removed and placed into care on three prior occasions before their most recent removal on March 20, 2025.

On April 17, 2025, the juvenile court adjudicated them “children in need of protection” and placed them in care for up to 12 months. Petitions to terminate P.D.’s parental rights were filed June 4, 2025. At the termination trial on September 5, 2025, the juvenile court heard testimony from:

  • P.D.’s clinical psychologist;
  • A qualified expert witness (QEW) for the Mandan Hidatsa Arikara Nation;
  • Two Human Service Zone workers;
  • The guardian ad litem; and
  • P.D. herself.

The court received nine exhibits and took judicial notice of prior juvenile files. Following trial, the juvenile court terminated P.D.’s parental rights to both children. P.D. appealed.

B. The Court’s Disposition

The Supreme Court addressed two main categories of issues:

  1. State-law termination standards under N.D.C.C. ch. 27‑20.3.
  2. ICWA and North Dakota’s ICWA-implementation requirements under N.D.C.C. ch. 27‑19.1.

On the state-law issues, the Court:

  • Held that the juvenile court did not clearly err in finding the children were “in need of protection” under N.D.C.C. § 27‑20.3‑01(5) (¶¶ 8–9);
  • Held that the statutory “450 out of 660 nights” foster care ground for termination under N.D.C.C. § 27‑20.3‑20(1)(c)(2) was satisfied and undisputed (¶ 9); and
  • Affirmed findings that the causes of the need for protection were likely to continue, that P.D. lacked present capacity to parent and stability, and that the children have suffered or would likely suffer serious harm (¶¶ 10–13).

On the ICWA issues, the Court:

  • Recognized the “dual burden of proof” when Indian children are involved, requiring both state-law grounds and ICWA findings (¶ 5);
  • Noted that the juvenile court had found beyond a reasonable doubt that returning the children to P.D. would likely result in serious emotional or physical damage (¶ 13), a finding P.D. did not contest; but
  • Concluded that the juvenile court failed to make the specific finding mandated by N.D.C.C. § 27‑19.1‑01(2)—that active efforts were made to provide remedial and rehabilitative services designed to prevent the breakup of the Indian family, and that those efforts were unsuccessful (¶¶ 17–18).

Relying on N.D.R.App.P. 35(a)(3)(B), the Court retained appellate jurisdiction and remanded with instructions:

  • The juvenile court must make the “detailed findings required under N.D.C.C. § 27‑19.1‑01(2)” (¶ 19);
  • The court may receive additional evidence if necessary; and
  • Any further proceedings must be completed within 45 days (¶ 19).

Thus, the termination order is neither completely affirmed nor vacated at this stage; its ultimate validity now turns on whether the juvenile court can properly find—based on existing or additional evidence—that ICWA “active efforts” were made and failed.

III. Detailed Analysis

A. Statutory and Doctrinal Framework

1. North Dakota’s Termination Standards: N.D.C.C. ch. 27‑20.3

Termination of parental rights in North Dakota is governed primarily by N.D.C.C. § 27‑20.3‑20. Relevant here is § 27‑20.3‑20(1)(c), which authorizes termination when:

  • The child is a “child in need of protection,” as defined in § 27‑20.3‑01(5); and
  • Either:
    • (1) The causes and conditions of the need for protection are likely to continue and for that reason the child is suffering or will likely suffer serious harm; or
    • (2) The child has been in foster care for “at least four hundred fifty out of the previous six hundred sixty nights.”

A “child in need of protection” under § 27‑20.3‑01(5) includes a child without “proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child's physical, mental, or emotional health, or morals.”

These elements must be established by clear and convincing evidence. The Court cites Interest of A.L.E., 2018 ND 257, ¶ 4, 920 N.W.2d 461, reinforcing that this heightened civil standard applies in termination cases.

2. ICWA and North Dakota’s Implementing Statute: N.D.C.C. ch. 27‑19.1

Because the children are enrolled members of the Mandan Hidatsa Arikara Nation, both the federal ICWA (25 U.S.C. § 1912) and North Dakota’s ICWA-implementation chapter, N.D.C.C. ch. 27‑19.1, apply (¶ 5).

Two provisions are central:

  1. Serious damage finding (N.D.C.C. § 27‑19.1‑01(4); 25 U.S.C. § 1912(f)).
    Termination is authorized only if the court determines, beyond a reasonable doubt, that continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
  2. Active efforts requirement (N.D.C.C. § 27‑19.1‑01(2); 25 U.S.C. § 1912(d)).
    Before ordering involuntary foster placement or termination, the court must find that “active efforts have been made to provide remedial services and rehabilitative services designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.”

Critically, § 27‑19.1‑01(2) raises the bar above mere “reasonable efforts”:

  • The court may not order removal unless “evidence of active efforts shows there has been a vigorous and concerted level of casework beyond the level that would constitute reasonable efforts under section 27‑20.3‑26.”
  • The statute explicitly states: “Reasonable efforts may not be construed to be active efforts.”

Active efforts must also be culturally responsive: they must take into account “the prevailing social and cultural values, conditions, and way of life of the Indian child's tribe” and must use available tribal and extended family resources.

3. Definition of “Active Efforts”: N.D.C.C. § 27‑19.1‑01(1)(a)

Section 27‑19.1‑01(1)(a) defines “active efforts” as:

“affirmative, active, thorough, and timely efforts intended primarily to maintain or reunite an Indian child with the Indian child's family.”

The statute then provides an 11-item, non-exclusive list of activities that may constitute active efforts, including:

  • Comprehensive assessment focused on safe reunification, with ongoing reassessment;
  • Identifying appropriate services and helping the parent overcome barriers to accessing them;
  • Engaging tribal representatives in planning and support;
  • Searching for and involving extended family;
  • Offering culturally appropriate preservation and rehabilitative services, including those provided by the tribe;
  • Supporting sibling placements and sibling relationships;
  • Supporting regular and natural visits and trial home visits;
  • Identifying and actively assisting with housing, financial, transportation, mental health, substance abuse, and peer support services;
  • Monitoring progress and adjusting services;
  • Considering alternative services when ideal ones are unavailable; and
  • Providing post-reunification services and monitoring.

These provisions mirror federal regulations at 25 C.F.R. §§ 23.2, 23.120 and are reinforced by 25 C.F.R. § 23.120(b), which mandates that active efforts “must be documented in detail in the record.”

B. Application of State Law Termination Standards

1. Child in Need of Protection

P.D. did not dispute that the children were “in need of protection” as defined in § 27‑20.3‑01(5) (¶ 8). The juvenile court found, and the record supported, that:

  • P.D. “has not demonstrated a present ability to perform parental duties”;
  • She acknowledged she was “not currently in a position to parent her children” (¶ 8);
  • She had not completed required mental health services; and
  • She lacked stable housing (¶ 8).

These facts, which P.D. essentially conceded, provided clear and convincing evidence that the children lacked proper parental care and were in need of protection under state law.

2. The “450 out of 660 nights” Ground

Section 27‑20.3‑20(1)(c)(2) permits termination when a child in need of protection has been in foster care “for at least four hundred fifty out of the previous six hundred sixty nights.” The juvenile court made detailed findings:

  • At the time of trial (September 5, 2025), the children had been in the physical custody of the Ward County Human Service Zone for 508 of the previous 660 nights, and in legal custody for 528 of those nights;
  • These calculations were made from November 15, 2023 (the 660th day prior to trial) (¶ 9);
  • Even limiting the count to the two most recent foster placements, the children had been in physical custody 478 days and legal custody 498 days (¶ 9); and
  • Across their lifetimes, they had been in the Zone’s legal custody 1,469 days—46% of J.C.’s life and 51% of S.C.Y.’s life (¶ 9).

P.D. did not challenge these calculations. Given this undisputed evidence, the statutory time-in-care ground for termination was clearly satisfied.

3. Likelihood of Continuation and Serious Harm

P.D. argued that the juvenile court erred in finding that the causes of the children’s need for protection were likely to continue and that the children had suffered or would suffer harm (¶ 10). She emphasized the relatively short time between removal, petition, and trial, parts of which she spent incarcerated, and highlighted steps she began taking shortly before trial (contacting counseling, enrolling in parenting classes, and seeking housing).

The juvenile court, however, found a long-standing pattern:

  • Each time P.D. complied sufficiently to secure reunification, “the behaviors and the conditions and causes of the need for protection resumed shortly after reunification” (¶ 11);
  • After the most recent reunification, P.D. removed the children from school—where they were receiving services including occupational therapy—to homeschool them, offering an explanation the court described as “illogical at best” (¶ 11);
  • This decision, made while she was already “busy with other things,” illustrated her inability to make responsible decisions for the children’s well-being and safety (¶ 11);
  • She showed a pattern of doing “just enough” for the children to be returned, then resuming “a life of drug use and domestic violence as soon as the eyes of the Human Service Zone were no longer on her” (¶ 11);
  • Even in the months before trial, she had three arrests (¶ 11); and
  • She admitted she was not currently in a position to parent and had not achieved stability (¶ 11).

On this record, the Court held that the juvenile court’s findings were not clearly erroneous. The opinion expressly invokes the concept of prognostic evidence:

“The evidence of [P.D.'s] patterns of behavior and inability to utilize skills to improve her life is prognostic evidence that forms the basis for a reasonable prediction as to future behavior that will cause the children's need for protection to continue, and for the likelihood that the children will probably suffer serious harm as a result.” (¶ 11)

Citing Interest of A.B., 2017 ND 178, ¶¶ 15 & 17, 898 N.W.2d 676, the Court reaffirms that:

  • A parent must show present capability or capability “within the near future” to be an adequate parent (¶ 12); and
  • The risk of future harm may be inferred from past harm and prognostic evidence that the parent’s inability will persist long enough to make successful assimilation into a family improbable if termination does not occur (¶ 12).

Similarly, drawing from Interest of A.L.E., 2018 ND 257, ¶ 12, the Court echoes the principle that a child “should not be expected to wait or assume the risk involved in waiting for permanency and stability” when a parent’s voluntary conduct makes them unavailable or unable to parent (¶ 12).

The Court therefore upholds the juvenile court’s state-law findings that:

  • The children are in need of protection;
  • The causes and conditions of that status are likely to continue and will not be remedied in the relevant timeframe; and
  • The children have suffered or will probably suffer serious harm (¶ 13).

The juvenile court also found, beyond a reasonable doubt, that the children would likely suffer serious emotional or physical damage if returned to P.D., and P.D. did not contest this ICWA-specific finding (¶ 13).

C. The ICWA “Active Efforts” Requirement and the Need for Specific Findings

1. Dual Burden Under ICWA

The Court reiterates from Interest of K.S.D., 2017 ND 289, ¶ 6, 904 N.W.2d 479, that when Indian children are involved, “state and federal law create a dual burden of proof”:

  • The party seeking termination must satisfy the state-law criteria (e.g., child in need of protection, continuing conditions, harm, statutory time in care); and
  • It must also satisfy the heightened ICWA requirements, including:
    • A beyond-a-reasonable-doubt finding of likely serious emotional or physical damage if custody continues with the parent; and
    • A finding that “active efforts” were provided to prevent the breakup of the Indian family and that such efforts failed.

2. Content of the Active Efforts Requirement

The opinion quotes N.D.C.C. § 27‑19.1‑01(2) (¶ 15), which requires:

  • Active efforts “to provide remedial services and rehabilitative services designed to prevent the breakup of the Indian family”;
  • A finding that those efforts “have proved unsuccessful”; and
  • Evidence that these efforts constitute a “vigorous and concerted level of casework beyond the level that would constitute reasonable efforts” under § 27‑20.3‑26.

Further, active efforts must:

  • Be culturally informed and consistent with the tribe’s social and cultural values and way of life;
  • Utilize extended family, tribal resources, and Indian service agencies; and
  • Be documented in detail in the record (25 C.F.R. § 23.120(b)).

3. What the Juvenile Court Actually Found

The juvenile court made three relevant statements that touch on “active efforts,” as described in the Supreme Court’s opinion:

  1. The court recited that the QEW, Ms. Poitra, “testified that, in her opinion, active efforts to reunite this family have been made by the Zone, including ongoing safety and service plans with home visits to engage the mother, and ongoing measures to prevent removal after reunification” (¶ 17).
  2. The court found “the agency has made active efforts to finalize the children's new permanent plan of adoption” (¶ 18).
  3. The court found “[t]hat active efforts were made to place the siblings together” (¶ 18).

Importantly, none of these statements is a direct judicial finding that:

  • Active efforts were made to provide remedial and rehabilitative services specifically designed to prevent the breakup of the Indian family; and
  • Those efforts proved unsuccessful.

4. Why These Findings Are Insufficient

The Supreme Court relies on Interest of K.B., 2021 ND 106, ¶ 7, 961 N.W.2d 293, to reiterate that “findings must be made by the trial judge, not the witness” (¶ 17). A witness’s opinion—even a QEW’s opinion—that “active efforts” were made does not substitute for the court’s own, reasoned, fact-based determination that the statutory standard was met.

Similarly, findings about active efforts towards adoption or sibling placement address different aspects of permanency planning. They do not answer the threshold ICWA question whether the State and relevant agencies made vigorous, culturally appropriate, remedial, and rehabilitative efforts to keep the Indian family together or to reunify it, and whether those efforts failed.

The statute is explicit: before removal or termination, the court “shall find that active efforts have been made to provide remedial services and rehabilitative services designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” N.D.C.C. § 27‑19.1‑01(2) (emphasis added). The juvenile court’s order, as described, lacks such a finding.

Thus, while the record may well contain evidence of services provided and steps taken (e.g., safety plans, home visits, support after reunification), the order itself does not connect these factual details to the legal requirement in the statute. Nor does it analyze them in terms of the statutory definition of “active efforts” in § 27‑19.1‑01(1)(a), which emphasizes:

  • Affirmative, active, thorough, and timely efforts;
  • Primary intent to maintain or reunite the Indian child with the family;
  • Cultural consistency with the tribe’s ways; and
  • Active assistance in overcoming barriers to service participation.

Because those specific, detailed findings are missing, reversal or remand is required to ensure ICWA compliance. The Court opts for a limited remand with retained jurisdiction.

5. Remedy: Limited Remand Under N.D.R.App.P. 35(a)(3)(B)

Rather than reversing the termination order outright, the Court uses N.D.R.App.P. 35(a)(3)(B) to:

  • Retain appellate jurisdiction; and
  • Remand to the juvenile court to “make the detailed findings required under N.D.C.C. § 27‑19.1‑01(2)” (¶ 19).

The juvenile court may receive additional evidence if needed, but must complete any further proceedings within 45 days (¶ 19). This approach:

  • Acknowledges the urgency of permanency for the children;
  • Prevents unnecessary duplication of proceedings already properly conducted (e.g., on state-law elements and the serious harm finding); and
  • Ensures that the statutorily mandated ICWA protections are meaningfully applied and documented.

The decision illustrates how appellate courts can cure deficiencies in ICWA findings without entirely restarting the case, provided the record can be supplemented and clarified within a constrained timeframe.

D. Precedents Cited and Their Influence

1. Interest of A.L.E., 2018 ND 257, 920 N.W.2d 461

A.L.E. is cited for two major propositions:

  • The standard of review: the clearly erroneous standard applies to juvenile court findings in termination cases (¶ 4).
  • The substantive principle that a child should not be required to wait for a parent who, through voluntary conduct, is unavailable or unable to parent; a child “should not be expected to wait or assume the risk involved in waiting for permanency and stability” (¶ 12).

In this case, that reasoning supports upholding the juvenile court’s conclusion that P.D.’s pattern of relapse, instability, and criminal involvement made it unreasonable to expect the children to wait indefinitely for her to become a safe, stable caregiver.

2. Interest of A.B., 2017 ND 178, 898 N.W.2d 676

A.B. supplies key concepts about prognostic evidence:

  • A parent must show present capability—or capability within the near future—to be an adequate parent (¶ 12, citing A.B. ¶ 15); and
  • Future harm may be proven based on past harm and prognostic evidence of continued parental inability (¶ 12, citing A.B. ¶ 17).

These principles are applied to P.D.’s repeated cycles of partial compliance, reunification, relapse (substance use and domestic violence), and re-removal, as well as her recent arrests. The Court concludes this pattern is strong prognostic evidence that the causes of the children’s need for protection will persist.

3. Interest of K.S.D., 2017 ND 289, 904 N.W.2d 479

K.S.D. is cited for the “dual burden of proof” in ICWA termination cases (¶ 5). It underscores that:

  • Meeting state-law termination standards is necessary but not sufficient; and
  • ICWA’s additional protections—heightened burden of proof on likely serious damage and the active efforts requirement—must also be satisfied.

The present decision applies that framework: state-law elements are fully satisfied, but the ICWA active efforts finding remains missing, necessitating remand.

4. Interest of B.V., 2025 ND 28, 17 N.W.3d 549

The Court cites B.V. (¶ 5) simply to reaffirm that when Indian children are involved, ICWA “requires specific findings.” This prior decision underscores that ICWA compliance is not a matter of mere generalities; courts must make the distinct findings required by federal and state ICWA provisions.

5. Interest of J.C., 2024 ND 9, 2 N.W.3d 228

An earlier Interest of J.C. decision is cited (¶ 6) for the standard of review, reiterating:

  • Juvenile court findings in termination proceedings are reviewed under N.D.R.Civ.P. 52(a)’s clearly erroneous standard; and
  • A finding is clearly erroneous if induced by an erroneous view of the law, unsupported by evidence, or if, on the entire record, the appellate court is left with a definite and firm conviction that a mistake has been made.

Here, the Court applies that standard and concludes that, except for the missing active efforts findings, the juvenile court’s factual determinations are adequately supported and not clearly erroneous.

6. Interest of K.B., 2021 ND 106, 961 N.W.2d 293

K.B. plays a central role in the active efforts analysis. It stands for the basic but crucial proposition that “findings must be made by the trial judge, not the witness” (¶ 17). In other words:

  • The court must independently evaluate the evidence and make its own findings; and
  • It may not merely adopt or recite a witness’s conclusions as a substitute for judicial fact-finding.

In this case, although the QEW testified that active efforts had been made, the juvenile court’s order did not expressly adopt that conclusion as its own finding on the statutory active efforts requirement, nor did it detail the efforts in a manner tying them to the statute. That omission triggers the need for remand under K.B.’s insistence on judicial, not testimonial, findings.

IV. Simplifying Key Legal Concepts

A. “Child in Need of Protection”

A “child in need of protection” under North Dakota law is a child who does not receive the basic care and oversight necessary for their physical, mental, or emotional health, or morals. This could include:

  • Lack of adequate food, housing, or medical care;
  • Failure to provide education required by law;
  • Exposure to domestic violence, chronic substance use, or dangerous environments; or
  • Chronic neglect or abandonment.

The focus is on whether the child has the care and control needed for healthy development—not merely on whether the parent has good intentions.

B. Standards of Proof: “Clear and Convincing” vs. “Beyond a Reasonable Doubt”

  • Clear and convincing evidence is an intermediate standard used in many civil cases involving important rights (like parental rights). It requires evidence that makes it “highly probable” that a fact is true—more than a preponderance (“more likely than not”), but less than beyond a reasonable doubt.
  • Beyond a reasonable doubt is the highest standard, commonly used in criminal cases. Under ICWA, this standard also governs the finding that returning an Indian child to the parent is likely to cause serious emotional or physical damage.

In this case:

  • State-law termination elements (child in need of protection, continuation, harm, time in care) were subject to clear and convincing evidence; and
  • The ICWA “serious damage” finding had to—and did—meet the beyond-a-reasonable-doubt standard.

C. “Reasonable Efforts” vs. “Active Efforts”

These two phrases sound similar but represent significantly different obligations.

  • Reasonable efforts (N.D.C.C. § 27‑20.3‑26) are the baseline efforts the State must make in most child protection cases to prevent removal or to reunify families. They may include referrals to services, case planning, and occasional follow-up, but they need not be intensive or culturally specific.
  • Active efforts (N.D.C.C. § 27‑19.1‑01(1)(a), (2)) are a higher standard required in ICWA cases. They must be:
    • Affirmative (the agency takes the initiative, rather than waiting for the parent);
    • Active, thorough, and timely (sustained involvement, not sporadic contact);
    • Focused primarily on maintaining or reunifying the Indian child with the family; and
    • Culturally appropriate and coordinated with the child’s tribe and extended family.

North Dakota law explicitly states: “Reasonable efforts may not be construed to be active efforts” (N.D.C.C. § 27‑19.1‑01(2)). This means that what might be acceptable in a non-ICWA case is not necessarily enough when an Indian child is involved.

D. “Prognostic Evidence”

“Prognostic evidence” refers to evidence from which a court can reasonably predict future behavior or conditions. In termination cases, this often includes:

  • A parent’s history of relapse into substance use;
  • Repeated cycles of domestic violence;
  • Persistent failure to follow through with treatment or services; or
  • A long pattern of instability (housing, employment, criminal justice involvement).

The law does not require waiting for new or intensified harm to occur. If the pattern shows that the parent is unlikely to become a safe and stable caregiver in a timeframe that meets the child’s needs, the court may rely on prognostic evidence to support termination.

E. Limited Remand with Retained Jurisdiction

Under N.D.R.App.P. 35(a)(3)(B), the Supreme Court can:

  • Retain jurisdiction over the appeal; and
  • Send the case back (remand) to the trial court for additional findings or limited proceedings.

This procedural tool allows the appellate court to:

  • Correct or complete the record on a specific legal requirement (here, active efforts findings);
  • Avoid full reversal or retrial when only a portion of the decision is legally deficient; and
  • Maintain control over the appeal’s outcome once the trial court finishes the required supplemental work.

In this case, the Supreme Court retained jurisdiction and instructed the juvenile court to make detailed active efforts findings within 45 days, with the option of taking additional evidence if necessary.

V. Practical and Doctrinal Impact

A. Implications for Juvenile Courts

The central doctrinal contribution of Interest of J.C. is its insistence on explicit, detailed ICWA “active efforts” findings in termination cases involving Indian children. Going forward, juvenile courts in North Dakota must:

  • Set out a separate section of findings addressing:
    • What specific remedial and rehabilitative services were offered and provided;
    • How these services were designed to prevent the breakup of the Indian family;
    • How the efforts met the standard of being “affirmative, active, thorough, and timely”;
    • How they accounted for the tribe’s social and cultural values; and
    • Why the court concludes that these efforts proved unsuccessful.
  • Do more than recite “active efforts were made”—they must describe those efforts and tie them to the statutory definition.
  • Ensure that any reference to a witness’s opinion about active efforts is clearly adopted or rejected as part of the court’s own independent analysis, not left merely as a summary of testimony.

This decision will likely lead to more robust, structured orders in ICWA cases, perhaps including checklists or headings corresponding to the statutory active efforts factors in § 27‑19.1‑01(1)(a).

B. Implications for Agencies and Practitioners

For state agencies (Human Service Zones), caseworkers, and attorneys, the opinion emphasizes:

  • The need to distinguish in both practice and documentation between:
    • Ordinary “reasonable efforts” for non-ICWA cases; and
    • Enhanced “active efforts” required in ICWA cases.
  • The necessity of:
    • Detailed record-keeping of contacts, services offered, assistance provided (e.g., transportation, scheduling, culturally appropriate providers);
    • Evidence of collaboration with tribal representatives and extended family; and
    • Documentation of barriers encountered and how the agency helped address those barriers.
  • The importance of training QEW witnesses and agency staff to describe services concretely, not just in conclusory terms like “active efforts were made.”

For parents’ counsel, the decision highlights a fertile area for challenge: if a termination order involving an Indian child lacks developed active efforts findings, or if the record shows only “reasonable” rather than “active” efforts, a remand or reversal may be warranted.

C. Implications for Indian Families and Tribal Sovereignty

Substantively, this decision reinforces the protective purposes of ICWA:

  • It ensures that termination of parental rights to Indian children cannot occur without rigorous efforts to keep families together or reunite them, consistent with tribal norms and supports.
  • It affirms the role of tribes and extended families in supporting and preserving Indian families.
  • By requiring courts to identify and describe active efforts—and to engage with tribe-specific cultural considerations—it advances ICWA’s goal of respecting tribal sovereignty and the unique political status of Indian children and tribes.

Even when termination ultimately proceeds (as may occur on remand here), the requirement of robust active efforts disciplines the system to exhaust meaningful, culturally informed reunification avenues before severing the parent-child relationship.

D. Appellate Practice and Procedure

From an appellate practice perspective, Interest of J.C. illustrates:

  • How appellate courts can calibrate remedies when trial courts satisfy most legal requirements but fail to make one crucial category of findings (here, ICWA active efforts);
  • The usefulness of limited remands under N.D.R.App.P. 35(a)(3)(B) in child protection cases, where time is critical but rights are fundamental; and
  • The importance of carefully scrutinizing trial court orders in ICWA cases for completeness, not merely for outcome.

Counsel should be prepared, in ICWA appeals, to:

  • Identify with precision any missing statutory findings;
  • Argue whether the deficiency can be cured by limited remand or requires outright reversal; and
  • Address whether additional evidence is necessary or whether the existing record suffices for proper findings.

VI. Conclusion

In the Interest of J.C., 2025 ND 217, stands as a significant clarification of North Dakota’s ICWA jurisprudence. While affirming that the evidence supported termination under state law and that the ICWA “serious damage” finding was properly made, the Supreme Court refused to overlook a critical omission: the lack of explicit, detailed findings that “active efforts” were made to provide remedial and rehabilitative services designed to prevent the breakup of the Indian family, and that those efforts failed.

By remanding for specific active efforts findings while retaining appellate jurisdiction, the Court sends a clear message:

  • ICWA’s protections are mandatory, not aspirational;
  • “Active efforts” are a distinct, heightened requirement that cannot be conflated with ordinary “reasonable efforts”; and
  • Juvenile courts must document in detail the efforts made and their results, especially in relation to cultural and tribal considerations.

The decision therefore strengthens ICWA compliance in North Dakota, promotes rigorous judicial oversight of agency practice, and underscores the centrality of family preservation and tribal sovereignty in cases involving Indian children. Its lasting impact will likely be seen in more thorough trial court orders, more careful agency documentation, and heightened protection for Indian families facing the profound consequences of parental rights termination.

Case Details

Year: 2025
Court: Supreme Court of North Dakota

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